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3 million reasons not to ‘get revenge’ on complaining worker

by on
in Discrimination and Harassment,Human Resources

by Mindy Chapman, Esq.

Do your supervisors know it’s illegal to lash out at or get revenge on em­­ployees who voice legal complaints?

While race discrimination has historically been the most popular employee discrimination claim with the EEOC, retaliation took over the top spot last year. A recent $3 million jury verdict shows how America is becoming Retaliation Nation.

Case in Point: Jennifer McInerney worked as a United Airlines ramp supervisor at the Denver airport. The physically demanding job involved monitoring the loading, unloading, fueling and de-icing of planes. When she became pregnant and started having liver and kidney problems, she requested a transfer to a desk job. Her request was denied.

McInerney started having pregnancy complications and took FMLA leave. Eventually her baby boy was born premature with heart and lung problems. She requested extended unpaid leave to care for her newborn dis­abled child. Initially United granted her an additional month but then denied the leave, claiming it could not cover the work schedule.

She then voiced a complaint of sex discrimination to her manager, arguing that she was denied the leave, “because I’m a woman on the ramp, and I just had a disabled child.” No one investigated her complaint. Instead, the company terminated her for not showing up at work.

McInerney sued United, claiming it retaliated against her for her sex discrimination claim. A jury agreed, returning a $3 million verdict. A U.S. appellate court recently confirmed the ruling. (McInerney v. United Air Lines, 10th Cir., 4/11/11)

3 lessons learned

1. Investigate all chirps. Organizations must investigate all chirpings of discrimination, harassment and retaliation even if the complaint is only one sentence. If they claim foul play, you must start an investigation.

2. Have a heart. McInerney went out on FMLA leave with liver and kid­ney failure and fluid in her lungs. Her son was born disabled. She asked for an extended unpaid leave of absence, which the company had granted to others in the past. Claiming the sched­­ule wouldn’t allow it was cold-hearted, and juries don’t like cold hearts.

3. Use your retaliation stopwatch. Start your timer when the employee chirps discrimination and stop the watch when you take an adverse em­­ployment action against the employee. If there’s not more than nine months between the two events, the court may determine a connection and find you engaged in retaliation.

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Mindy Chapman is an attorney and  president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. Sign up to receive her blog postings at BusinessManagementDaily.com/Mindy.

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